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LitigationProofing, LLC President Eric Rosenberg (left) awards April "E-mail of the Month" Prize Highlighting Challenges of Government Communications via E-mail to Lise Luborsky (right).

E-mail Plays Central Role in West Virginia Insurance Controversy

May 10, 2005 - LitigationProofing, LLC, a New York-based consultant to major corporations and law firms on best practices in electronic communications, has awarded its April "E-Mail of the Month" prize. The award highlights the importance of smart e-mail skills by honoring the person who submits the best example of a problematic electronic communication drawn from the public record.

April's prize goes to e-mail sleuth Lise Luborsky, a senior litigation partner in the Philadelphia law firm of Britt, Hankins, Schaible & Moughan. Ms. Luborsky won the award by drawing attention to a set of e-mails from West Virginia that highlight the risk that any e-mail written by or submitted to a government entity will be subject to full public disclosure. She was awarded a "LitigationProofing" Native American-style drum - LitigationProofing's preferred method of communication because it leaves no trace.

The genesis of the disclosed e-mails was a study by the West Virginia State Insurance Commission that the Governor used to support proposed new legislation to prohibit third-party bad-faith lawsuits against insurers. (Such suits allow accident victims to sue insurance companies they believe tried to avoid paying a fair settlement on behalf of insured defendants.)

A plaintiff's lawyer - not Ms. Luborsky's firm - sued to enforce a state Freedom of Information Act request for e-mails circulated among the Commissioner's office, the Governor's office and certain insurers on the bad-faith lawsuit issue. In response to the FOIA request, the Commissioner tried to black out from some of the e-mails written between her and the Governor's office the names and e-mail addresses of insurers her office had consulted for the study. Her contention was that the identifying information comprised trade secrets. On April 1, the West Virginia Trial Court firmly rejected this effort to keep the contents confidential, contending that the administration was asking lawmakers to approve tort reform without detailing what the insurance industry would deliver in exchange for its reduced litigation risks (Skaggs v. West Virginia Insurance Commission and Jane Cline, Kanawha Circuit Court, 05-c-570).

"The lesson Lise and LitigationProofing draw from this West Virginia imbroglio is that the informality of e-mailing to or within the government should not shortcut the normal precautions that would be taken if the contents were in memo or letter form," explains Eric M. Rosenberg, president and founder of LitigationProofing. "E-mail in government possession is subject to Freedom of Information Act requests just as any other written communication would be. Any business person contemplating such a method of communication to government or any government official writing e-mail must draft with full awareness that the writing will be public and publicized.

"Further, if the business writer contemplates that any of the e-mail's contents should be kept confidential under the applicable FOIA rule, it is essential that such writing be accompanied by a formal confidentiality request to the government under the rule."

Ms. Luborsky is an expert in insurance litigation, including insurance insolvency and representation of insurance guaranty associations. For her fine work in locating and bringing this example to LitigationProofing, she has won a LitigationProofing drum. The drum is a reminder that the best defense to e-mail disclosure is to communicate by unrecorded sound, not wire or wireless.

» Prior Awards

To highlight the importance of smart, well-trained e-mail skills, LitigationProofing will award an appropriate prize of nominal value at the end of each month for the best submission of a problematic, but previously publicly disclosed and available e-mail. Contestants may submit entries by sending them to DO NOT SUBMIT any e-mail that is not from publicly available sources. Just as is true in much of what happens in litigation generally, the decision of "Judge" Rosenberg awarding the prize will be subjective and final. Here's an example from the recent securities analyst cases: